Friday’s Wichita Eagle contained an op-ed by a University of Kansas law professor that discussed the method of selecting supreme court justices in Kansas. (Stephen J. Ware: Open up Process of Picking Judges, January 23, 2009)
A Kansas blogger (The Kansas Jackass) noticed this piece and attempted to take Prof. Ware to task. But it seems like the Jackass is unable to grasp the meaning of one of Prof. Ware’s central points: that in a judicial retention election, there is no opposition candidate. Equating judicial retention elections with contested races for, say, a seat in the legislature ignores political reality.
That’s one of the things that makes the Jackass argument seem reasonable. There are, in fact, retention elections — the Jackass is correct on this. But political reality is different, and Prof. Ware provides plenty of evidence of this. It’s summarized in his assessment that the current system gives the “appearance, without the reality, of judicial accountability to the citizenry.”
The Jackass also presses her case by alleging a subtext in Prof. Ware’s article that doesn’t exist.
I don’t know why the Jackass is so adamant in her support of a system that is at the extreme end of the spectrum of 50 states in giving a voice to the people. Except: the Jackass is an anonymous blogger. Perhaps she has a personal connection to one of the Kansas Supreme Court Justices, or maybe to the current system that selects these justices. There’s no other reasonable explanation as to why someone would be so enamored with this system. Except for being, well, you know the name of her blog.
To learn more about the selection of justices in Kansas and why we need to change our method of selection, see Kansas Must Change Its Judicial Selection Method.
Here’s Prof. Ware’s expansion of his op-ed:
I thank the Jackass for calling attention to my op-ed in the Wichita Eagle. Of course, a short op-ed cannot go into as much depth as a longer article or blog so I appreciate this chance to correct some misunderstandings.
First, scholars routinely distinguish between judicial selection (how a judge initially gets on the court) and judicial retention (how the judge stays on the court) because selection and retention raise very different issues. My op-ed’s statement about selection is absolutely correct: “All the power in selecting the justices of the [Kansas] Supreme Court belongs to the governor and the bar (the state’s lawyers). So if the governor and bar want to push the state’s courts in a particular direction, there are no checks and balances in the judicial-selection process to stop them.”
When it comes to retention, reasonable people can disagree about how hard it should be to remove a judge. What reasonable people cannot dispute, however, is that a system of retention elections make it extremely hard to remove a judge. As my op-ed said “these ‘elections’ lack rival candidates and thus rarely include any public debate over the direction of the courts. In fact, a retention election is nearly always a rubber stamp, and no Kansas justice has ever lost one. With these judges so entrenched once they are on the court, the process for initially selecting them is all the more decisive.”
Retention elections are nearly always rubber stamps, not just in Kansas, but in the other states that use them as well. Professor Brian Fitzpatrick points out that, nationwide, sitting judges win retention over 98% of the time. This rubber-stamp aspect is intentional. As Professor Charles Geyh puts it, “Retention elections are designed to minimize the risk of non-retention, by stripping elections of features that might inspire voters to become interested enough to oust incumbents.”
Professor Michael Dimino explains: “retention elections protect incumbency in multiple, related ways: They minimize the incentives for opposing forces to wage antiretention campaigns by preventing any individual from opposing the incumbent directly; they eliminate indications of partisanship that allow voters to translate their policy preferences cost-effectively into votes; and they increase voter fears of uncertainty by forcing a choice of retaining or rejecting the incumbent before the voter knows the names of potential replacements.” Prof. Dimino concludes that “retention elections seek to have the benefit of appearing to involve the public, but in actuality function as a way of blessing the appointed judge with a false aura of electoral legitimacy.”
In other words, the lawyer groups who designed and pushed for retention elections did so to create the appearance, without the reality, of judicial accountability to the citizenry. Very sneaky of them because it fools some people into being distracted by rarely-meaningful retention elections, rather than focusing on the real action: initial selection of judges.Learn how you can support the Voice for Liberty. Click here.